Prafulla C. Pant, J. -
(1.) THIS appeal, preferred under section 378 of Code of Criminal Procedure, 1973, (for short Cr.P.C.), is directed against the judgment and order dated 11.05.1999, passed by Chief Judicial Magistrate, Almora, in Criminal Case No. 53 of 1995, whereby said court has acquitted the accused/respondent Harish Singh from the charge of offences punishable under section 451, 380 and 411 of I.P.C. Heard learned counsel for the appellant, and learned Amicus Curiae for the respondent, and perused the lower court record.
(2.) PROSECUTION story, in brief, is that on 16.12.1994, at about 9.00 a.m., accused Harish Singh son of Hukum Singh, resident of Village Diyari, said to have entered in the house of informant Himmat Singh (PW 1) of the same village and stolen a wooden box containing jewellery of silver, three sarees and two sweaters. First Information Report (Ex -A1) was got lodged on the very day at 3.00 p.m., with Patwari Palue (In Uttarakhand hills certain Revenue officials have been given police powers). On the basis of the First Information Report Crime No. 04 of 1994 was registered and check report (Ex -A3) was prepared. PW 5 Madan Singh Birodiya, Patwari, investigated the crime. He interrogated the witnesses and allegedly recovered two sweaters, three sarees and cash of Rs. 523/ - from the possession of accused Himmat Singh on 18.12.1994. After completion of investigation, charge sheet was filed by the Investigating Officer against the accused Himmat Singh, for his trial in respect of offences punishable under section 451, 380 and 411 of I.P.C. The Chief Judicial Magistrate, Almora, on receipt of the charge sheet, after giving necessary copies to the accused, appears to have framed charge of offences punishable under section 451, 380 and 411 of I.P.C., on 29.07.1998, against the accused/respondent Harish Singh, who pleaded not guilty and claimed to be tried. On this prosecution got examined PW 1 Himmat Singh (informant), PW 2 Harak Singh, PW 3 Nakuli Devi, PW 4 Nanda Ballabh and PW 5 Madan Singh Birodiya, Patwari (who investigated the crime). The oral and documentary evidence was put to the accused under section 313 of Cr.P.C., in reply to which he alleged that evidence adduced against him is false and he has been falsely implicated due to enmity. However, no evidence in defence was adduced. After recording the evidence of the parties, the trial court found that the prosecution has failed to prove charge of offences punishable under section 451, 380 and 411 of I.P.C., against accused/respondent Harish Singh and acquitted him of the charge. Aggrieved by said judgment and order dated 11.05.1999, passed by Chief Judicial Magistrate, Almora, in Criminal Case No. 53 of 1995, this appeal was filed by the State before Allahabad High Court from where it is received by transfer under section 35 of U.P. Reorganization Act 2000 (central Act 29 of 2000), for its disposal.
(3.) THE trial court while recording the acquittal of the accused has observed that PW 1 Himmat Singh, the informant is not the witness of fact. He is simply a formal witness, who lodged First Information Report. As to the statement of PW 3 Nakuli Devi, the trial court has mentioned that she is aged eighty years old and her vision was too weak. As such, her statement that she saw the accused Harish Singh taking away the box, was not found natural and trustworthy, concerned, there appears no recovery of the silver jewellery said to have been stolen, nor there is recovery of the wooden box. Only three Dhotis (sarees), two sweaters and cash of 523/ - said to have been recovered from the appellant.;